Connecticut is about to perform the first execution in more than forty years in any state north and east of Pennsylvania. What a sad day for liberal Northeasterners, showing that they still haven’t quite reached the total Eloi condition of their European cousins, who have, of course, banished the death penalty altogether.

Capital punishment in the U.S. today is a good illustration of the unprincipled exception.
Where it’s not completely outlawed, liberals have put an imposing set of safeguards around it. For example, capital punishment was restored ten years ago in New York State following the election of George Pataki who had promised to bring it back. But the New York law has so many restrictions that not a single execution has been performed during Pataki’s governorship, and, this past year, the death penalty was outlawed yet again. Sometimes, however, there is a crime so horrendous, as in this Connecticut case, that even liberals will feel constrained to allow the death penalty.

What, then, is the principle that distinguishes a murderer who doesn’t get the death penalty, from a murderer who does? There is none. The latter just went “too far,” tripping some wire in the primitive part of society’s brain, so that society’s normal opposition to the death penalty, based on strict liberal principle, gives way to a gut feeling that, in this case, the death penalty must be used. Thus the man scheduled for lethal injection in Connecticut, Michael Bruce Ross, strangled six teenage girls and two young women, four while he was a life insurance salesman, raping three of them before he strangled them. This happened back in 1984. So, if you brutally murder eight people, then maybe—after twenty years—your life will be taken from you via an injection of chemicals into your bloodstream that will gently put you to sleep. But if you brutally murder just two people, or four people, or maybe six people, you get to live, eat, sleep, watch tv, build up your pectorals, and study law, while your victims rot in the ground. That’s liberalism.

While I have no objections to Nutmeggers eliminating this native miscreant from their midst, one can’t dismiss opposition to the death penalty as merely a result of modern mushy liberalism. Michigan hasn’t executed anyone since 1845, nor, according to the linked article, has Rhode Island. Minnesota abandoned it (despite holding the record, having once hanged over 50 Dakotas simultaneously) in 1911 after a lengthy botched hanging disgusted everyone.

Posted by: Reg Cæsar on November 20, 2004 8:28 PM

A similar example to Mr. Auster’s Connecticut illustration became apparent when Timothy McVeigh, a white boy from the midwest, faced the needle. I was absolutely amazed at the number of liberals who supposedly abhor the death penalty clamoring for McVeigh’s life. There was no vast ACLU blitz, no law-school classes, no volunteer lawyers funded by the Ford Foundation, etc. McVeigh had a remarkably speedy trip to the gurney.

The same is true for the Rev. Paul Hill, executed for killing an abortionist in Pensacola, Florida. An amazingly fast trip through the system. Likewise no swarms of “pro-bono” lawyers, no Dershowitz, etc. Some murderers are more equal than others, it would appear. I do realize that in both cases, the convicted basically gave up appeals. That never seems to dissuade leftists in other cases, especially those involving members of the ‘oppresed übermenschen.’

Posted by: Carl on November 20, 2004 10:58 PM

I was in Terre Haute for Timothy McVeigh’s execution. I can tell you for a fact that the liberals were out in force that day. Much more so that the radical right who had been given the word to stay away.

The explanation I got for why Timothy McVeigh took his appeals as far as the Circuit Court but no farther was “hard cases make bad law”. McVeigh understood two things: one, he was going to lose in the Supreme Court, no matter what, and two, the decision made in his case was going to end up being the law for everybody.

One of his appeals was a direct constitutional challenge of the Actual Innocence clause of Clinton’s Effective Death Penalty Act. If he’d lost, and he knew he would, the Reasonable Doubt standard would have gone out the window for every death penalty appeal from then on.

Posted by: Ken Hechtman on November 21, 2004 12:51 AM

So Timothy McVeigh chose not to exhaust his appeals because he didn’t want to set a bad legal precedent?

Posted by: Matt on November 21, 2004 1:26 AM

I think the non partisan question on everyone’s minds is what do we do with those who commit murder. On one hand, the right wing says that if we put them to death then that will make others think twice about commiting such a heinous act. The left wingers will say that to kill our prisoners is barbaric and to send them to prison for a lifetime. Fact is that we will never fully rid ourselves of those who commit murder. Some may say that it is an intrical part of our society meant to establish hard boundaries to our collective sense of right and wrong. Where I believe that the death penalty fails us miserably is in the fact of its unequal application. Has anyone ever heard of the Baldus study? No? The Baldus study, the result of an examination of over 2,000 murder cases. The findings were that nearly 70% of the time the death penalty was sought when the case was a black on white crime. However, if the case was reversed, a white criminal, black victim, the death penalty was sought only 19% of the time. This is a hugely dismaying fact of the death penalty. Not to mention the actual existence of the death penalty itself. But that is a conversation for another day.

Posted by: Jason on November 21, 2004 3:11 AM

Jason wrote: “The Baldus study, the result of an examination of over 2,000 murder cases. The findings were that nearly 70% of the time the death penalty was sought when the case was a black on white crime. However, if the case was reversed, a white criminal, black victim, the death penalty was sought only 19% of the time. This is a hugely dismaying fact of the death penalty.”

This is a bit of a red herring. In most murders, like most other crimes, the killer and the victim are the same race. The left has tried to prove for years that the death penalty is racist because blacks get it in disproportionate numbers. According to Thomas Sowell, the only subset of the data that supports this is inter-racial murder. Otherwise, the statistically significant factor is the race of the victim, not the race of the killer. White on white murder is more likely to get the death penalty than black on black.

I suppose you could base a racial argument on those statistics but it wouldn’t be a “legal lynching” argument. It would have to be a “nobody takes ‘shine killings’ seriously” argument.

Posted by: Ken Hechtman on November 21, 2004 2:19 PM

Mr. Hechtman wrote:
‘I suppose you could base a racial argument on those statistics but it wouldn’t be a “legal lynching” argument. It would have to be a “nobody takes ‘shine killings’ seriously” argument.’

I do realize and acknowledge that Mr. Hechtman is not making that argument, he is merely suggesting it as possible. What Manny Alvarez wrote today in another thread seems pertinent:

“Since the mid-1970s constitutional law has required that capital juries must consider, among other things, the background and character of the defendant. […] The investigation must cover the inmate’s childhood, family life, education, relationships, important experiences, and overall psychological make-up.”

So which is more likely: that nobody takes the murder of a black man seriously, or that black perps are more likely to get off with the “I had a bad childhood” gambit?

Posted by: Matt on November 21, 2004 2:49 PM

Mr. Hechtman wrote:
‘I suppose you could base a racial argument on those statistics but it wouldn’t be a “legal lynching” argument. It would have to be a “nobody takes ‘shine killings’ seriously” argument.’

I do realize and acknowledge that Mr. Hechtman is not making that argument, he is merely suggesting it as possible. What Manny Alvarez wrote today in another thread seems pertinent:

“Since the mid-1970s constitutional law has required that capital juries must consider, among other things, the background and character of the defendant. […] The investigation must cover the inmate’s childhood, family life, education, relationships, important experiences, and overall psychological make-up.”

So which is more plausible: that nobody takes the murder of a black man seriously, or that black perps are more likely to get off with the “I had a bad childhood” gambit?

Posted by: Matt on November 21, 2004 2:50 PM

Sorry about the double-post. :-/

Posted by: Matt on November 21, 2004 2:51 PM

Further to Mr. Hechtman’s rebuttal of Jason’s post, it is worth keeping in mind that backs are far more likely to murder whites than vice versa. Depending upon the year, the ratio is anywhere from 7-10 to 1 (1 black victim of a white perpetrator versus 7-10 white victims of black perpetrators.) Even this statistic has been skewed by leftists running the justice department, since “hispanics” are broken out as a separate category only for counting victims. Hispanic perpetrators are classified as white.

Posted by: Carl on November 21, 2004 5:44 PM

In rebuttal, I have to say that the frequency with which capital crimes are committed by an ethnic group (whichever that group may be) should bear no bearing on the type of punishments that are sought.
All things being equal, there should be no reason for any discrepancy in the percentage of cases in which the death penalty is sought between ethnicities of criminals.

Mr. Hechtman wrote:
‘I suppose you could base a racial argument on those statistics but it wouldn’t be a “legal lynching” argument. It would have to be a “nobody takes ‘shine killings’ seriously” argument.’

Now can anyone tell me what is a ‘shine killing’?

Posted by: Jason on November 22, 2004 2:12 PM

“Minnesota abandoned it (despite holding the record, having once hanged over 50 Dakotas simultaneously) in 1911 after a lengthy botched hanging disgusted everyone.”

I think it was the United States Army, not the State of Minnesota, that hanged those Dakotas. (I believe the history of the Indian wars might provide some instructive precedents for how we handle “unlawful combatants” in the Global War on Terrorism. Band of Indians who might or might not be authorized by a sovereign Indian tribe seem a lot more analogous to al-Qaeda than do the Nazi sabateurs of World War II or Mr. Milligan in the Civil War.)

Posted by: Seamus on November 22, 2004 3:24 PM

Jason wrote:
“All things being equal, there should be no reason for any discrepancy in the percentage of cases in which the death penalty is sought between ethnicities of criminals.”

There are two problems with this statement: (1) the major premise is wrong (all things are not equal); and (2) the discrepancy isn’t in some abstract pre-factual _seeking_ of the death penalty, it is in the different facts and circumstances that legally obtain (see (1)).

Posted by: Matt on November 22, 2004 5:47 PM

This is not a minor point, by the way, although it is a very difficult point to communicate. The idea that people must be treated equally before initiating a pre-factual _seeking_ is unstable, and inevitably leads to requirements for substantive equality (or equalities of outcome).

We have a bad habit of using the term _procedural equality_ when we mean _procedural consistency_. But by applying that label (equality) we start to sneak in something _more_ than mere procedural consistency. Equality is something that applies to substantive empirical facts, it does not apply to procedures (at least, not as anything distinct from consistency). There really isn’t any such thing as a pre-factual equality. Equality either means nothing (that is, it means the same thing as consistency without remainder) or it means that particular facts (distinctives) are to be _suppressed_. So procedural equality is (in my understanding of things) a chimera that always leads to substantive equality.

It is a very important point, but not one I’ve found a way to communicate transparently.

Posted by: Matt on November 22, 2004 7:58 PM

Matt wrote: “We have a bad habit of using the term _procedural equality_ when we mean _procedural consistency_. But by applying that label (equality) we start to sneak in something _more_ than mere procedural consistency.”

Think of the drunk looking for his car keys under the street light even though he lost them in the alley. He’s looking for them under the street light because that’s where the light is better. Same rules apply. We can *see* equality of results. We may *want* equality of procedure — but we can’t see it.

A “shine killing” is uncomplimentary police slang for a black-on-black murder.

Posted by: Ken Hechtman on November 22, 2004 9:47 PM

Just so we don’t go thinking this is uniquely American… After the rape and murder of a Danish woman and her child a few years back, the Danes attempted to push through a ‘special’ law that would allow this one criminal to be executed. It happened in my wife’s hometown of Esbjerg, and she (an opponent of the death penalty) supported it. I have as yet gotten her to realize the silliness of such legislation.

Posted by: David C on November 23, 2004 7:06 AM

The thing I find dismaying here is that you people realize and admit that all things are not equal. That point is not in question. But does that mean that we stop trying for equality in the eyes of the law?

Jason wrote:
“All things being equal, there should be no reason for any discrepancy in the percentage of cases in which the death penalty is sought between ethnicities of criminals.”

Matt wrote:
There are two problems with this statement: (1) the major premise is wrong (all things are not equal); and (2) the discrepancy isn’t in some abstract pre-factual _seeking_ of the death penalty, it is in the different facts and circumstances that legally obtain (see (1)).

Posted by: Jason on November 23, 2004 8:58 PM

I hope Matt keeps trying.

Posted by: Paul Henrí on November 23, 2004 9:52 PM

Jason writes:
“But does that mean that we stop trying for equality in the eyes of the law?”

Does that mean that we stop trying for something that is not merely utopian and counter to nature but self-contradictory? Absolutely. Not only do we stop trying ourselves, we stand astride history and insist in our loudest voices that others stop too. REPENT!

There are some significant differences between myself and a radical leftist. The belief that substantive inequalities presently exist and that those inequalities are reflected in and even maintained by human institutions _is not_ one of those differences. The belief that substantive inequalities and their reflection in human institutions are a moral outrage _is_ one of those differences.

Posted by: Matt on November 23, 2004 10:11 PM

I hope this is not a duplicate of an earlier attempt at a posting.

First, Jasón’s (as I refer to my dear little cousin with the same name) use of the expression “but…that means we stop trying for equality in the eyes of the law” is unsupported. No shame there; heck, I have done the same.

Second, Jason’s premise is immoral, not that he realizes it. He assumes all people are similarly situated: whites are equal in every way to blacks. It follows 100 whites must be executed for every 100 blacks or maybe, somewhat less horribly, 90 whites must be executed for every 10 blacks if the demographics within the jurisdiction show 90% are white and 10% are black. This is the essence of “procedural” equality.

What good end is observed with this procedural principle—civil order based on the idea innocent whites are randomly chosen for execution so as to equal the number of black murderers? Our debater assumes there are such things as substantive and procedural equality: concepts derived from the 14th Amendment by our Judiciary and accepted off and on by the two other “co-equal” branches of our government. The difference is inscrutable and should be limited to the resolution of disputes, the legal process, rather than to the debate between what is good and evil.

It is easy to understand why he would hold such a view. Orders must be followed. His orders comprise the liberal mantra that has been espoused by left liberals and right liberals such as Bush (a/k/a a conservative to left liberals) for at least as long as the Democrats cashiered most black people as hapless allies no later than Huey Long (shamefully from my state, Louisiana) in the 1930’s. They say blacks are being persecuted; not that Republicans are particularly virtuous: recall Republican Radical Reconstruction. Also see, for example, the Union-appointed black governor of Louisiana; a lot of touchy-feely procedural equality there eh?

Needless to say, I dropped my young, twerp, Yankee American History assistant professor of history the day he said the South lost the war about 10 times emphatically to justify Radical Reconstruction. My delightful second choice was a full professor sweetheart who gave me an A. I sat in the first row when I could. I digress and have no prejudice against Yankees except insofar as football, except for Notre Dame, whom I admire as a far third and second to Alabama and LSU; LSU gloriously beat one of our prime SEC rivals Alabama two weeks ago thanks to “one of the keenest minds in football,” Coach Nick Saban. (Oklahoma or Auburn is so going to demolish USC in the Orange Bowl—wannah bet?)

Substantive equality is impossible here on Earth, although it is a good goal. Procedural equality is an attempt to resolve earthly disputes, but it cannot supercede substantive equality, that is, the laws of God, things designed so we achieve what God wants us to achieve: the good, the true, and the beautiful. I assume, of course, God establishes what is good, true, and beautiful. Liberals assume whatever is consistent with their mindset, not that many conservatives don’t also.

Have at me. I want to learn.

Posted by: Paul Henrí on November 24, 2004 2:16 AM

Support for Matt’s hypothesis that all laws are a discrimination comes from THE TEMPTING OF AMERICA, by the brilliant Robert Bork, at p. 65:

“When a judge assumes the power to decide which distinctions made in a statute are legitimate and which are not, he assumes the power to disapprove of any and all legislation, because all legislation makes distinctions.”